United States v. Evans

• Decision Date: 12 June 2018
• Docket Number: No. 17-20158,cons. w/ 17-20159,17-20158
• Citation: 892 F.3d 692
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Richard Arthur EVANS, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

892 F.3d 692

UNITED STATES of America, Plaintiff–Appellee

v.Richard Arthur EVANS, Defendant–Appellant

No. 17-20158

cons. w/ 17-20159

United States Court of Appeals, Fifth Circuit.

FILED June 12, 2018

REVISED July 6, 2018

Eileen K. Wilson, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellee.

David Benjamin Gerger, Gerger Khalil & Hennessy, Carl Richard Hennies, Quinn Emanuel Urquhart & Sullivan, L.L.P., Houston, TX, for Defendant–Appellant.

Before KING, HAYNES, and HIGGINSON, Circuit Judges.

KING, Circuit Judge:

After practicing medicine for over thirty years, Doctor Richard Evans decided to branch into pain management. Seven years, eleven thousand oxycodone prescriptions, and a couple of million dollars later, Evans faced federal criminal charges. According to the Government, Evans’s pain-management clinic was really a "pill mill"—an operation that prescribes drugs with no legitimate medical purpose. After a lengthy jury trial, Evans was convicted of distributing controlled substances, money laundering, mail fraud, and conspiracy.

Evans now appeals. He claims the evidence at trial was insufficient for the jury to convict on some counts, legal flaws in the indictment tainted others, the district court bungled two evidentiary rulings, and his Confrontation Clause rights were violated. All Evans’s claims lack merit. With respect to Evans’s Confrontation Clause challenge, we assume without deciding that his rights were violated but nevertheless conclude that any error was harmless. Thus, we AFFIRM all Evans’s convictions and his sentence.

I.

A.

In 2010, Doctor Richard Evans started seeing pain-management patients at his office located in Houston. Many of these patients transferred in from two other Houston pain-management clinics where Evans had practiced since 2008. Before that, Evans had primarily worked with car accident, workers' compensation, and cancer

patients.

Around the time Evans’s pain-management patients transferred in, two women who worked at a dental office in Evans’s building, Kristi Smith and Donna Epley, started noticing changes. Cars with Louisiana license plates and loaded with up to six people would show up at Evans’s office. These cars would fill the lot, outnumbering the cars with Texas plates. Epley, who would usually arrive early in the morning and unlock the building, would see people waiting outside when she arrived. Evans’s office would be packed all day long, and people would loiter around the building. The pair noticed that the patient load would be heavy Monday through Thursday. The flow would ease up on Fridays, which—according to a sign in Evans’s waiting room—was the day that no prescriptions would be given out.

Smith and Epley noticed things about the newcomers. Some were unkempt or unhygienic. Others would use the wrong restroom or try to take baths in the sinks. One time, Smith watched as a woman washed and dried her hands over and over and over. Epley thought, based on her past work with addicts, that many of the newcomers seemed impaired, on something, or addicted. Once, a patient left Evans’s office, shaking a prescription with glee because he "got it."

The duo brought their concerns about Evans’s new clientele to the building’s management and Evans’s receptionist. Evans responded with a set of building rules. The rules regulated parking ("Patients who are in the parking lot prior to 8:15am may not be seen"), prohibited loitering ("Do NOT ‘hang out ’ in any of our parking lots" or "in the hallways"), imposed a dress code ("Though it should go without saying, personal grooming/hygiene/clothing are important"), and limited conversation topics in the waiting areas ("[D ]iscussions about medication/treatment may result in discharge ").

After reading a newspaper article about pill mills popping up in Houston when Louisiana tightened its regulations on pain-management clinics, Smith and Epley grew suspicious. The pair started snooping through Evans’s trash. In it, they would find torn and re-taped prescriptions and handwritten letters requesting prescriptions (dosage and pill count often included). They also found a flyer, which explained the procedure patients could follow to get prescriptions via mail and for multiple months. According to the flyer, patients could either mail in a $240 money order for a month of prescriptions or bring in the money for additional months of prescriptions when they came in for their appointments (saving them $40). Patients were directed to "talk to David at Briargrove Pharmacy about mailing" their medications to them.

Smith and Epley relayed their suspicions to law enforcement and the Texas Medical Board. In September 2012, federal agents raided Evans’s office (which, Smith and Epley reported, stopped the flow of patients from Louisiana). Patient files, computers, and prescription pads were seized from Evans’s office. After this, Evans still saw patients, but just the "normal traffic load."

B.

In 2015, a federal grand jury charged Richard Evans and David Devido, the owner of Briargrove Pharmacy (that filled many of Evans’s prescriptions), with several crimes: conspiracy under 18 U.S.C. § 371, six counts of distributing controlled substances without a legitimate medical purpose and outside the usual course of professional practice under 21 U.S.C. § 841, five counts of money laundering under 18 U.S.C. § 1957, and eight counts of mail fraud under 18 U.S.C. § 1341. Devido was also charged with four counts of health-care fraud for false claims under 18 U.S.C. § 1347.

The six distribution counts pertained to six prescriptions for oxycodone Evans wrote for five of his patients from Louisiana. The five patients were Marvin Wampole (whose count was voluntarily dismissed by the Government at trial), Kimberly Richardson (whose prescriptions the Government charged in two separate counts), Stacy Cash, Audie Decoteau, and Shane Roper. The five money-laundering counts were based on five withdrawals Evans made from his account with Amegy Bank. The eight mail-fraud counts charged Evans with making false representations by writing prescriptions without adequate medical examinations, without proper recordkeeping, and without providing the proper standard of care. The mail was used in Evans’s scheme, per the indictment, when Evans received money orders through the mail from four patients and caused drugs to be sent via mail to the same four. The conspiracy count charged Evans and Devido with conspiring to do two crimes: distributing controlled substances and mail fraud.

C.

The day Richard Evans and David Devido’s trial was to start, Devido struck a deal with the Government and pleaded guilty to obtaining possession of a controlled substance through misrepresentation in violation of 21 U.S.C. § 843(a)(3). No deal was struck with Evans, and his case went forward to trial.

The Government began its case against Evans by calling Smith and Epley, who reported their observations and suspicion that Evans ran a pill mill (a conclusion Evans unsuccessfully objected to on the ground that it was outside their personal knowledge). Next, the Government called Brenda Clayton—one of Evans’s longtime medical assistants—to relay how Evans’s practice worked. Clayton, who has no advanced degree and only on-the-job training as a medical assistant, said that Evans’s other assistant, Rhoda Mann, would handle the new patients. Follow-up visits were Clayton’s business.

Clayton discussed her role during these follow-up visits. She would ask the returning patient if he had any complaints and if the current dosage was adequate. If it was adequate, Clayton would fill out a prescription based on the patient’s chart. After the prescription was written up, Evans would enter the examination room, see the patient, and sign the already filled-out prescription. If, on the other hand, a patient asked for an increase in his dosage, Clayton would note it, tell Evans, and then Evans would decide what to do.

Clayton also explained how a patient could get medication without an office visit. When a patient first started seeing Evans, if the patient wanted to stay on medication, he would have to come in every 30 days to get a 30-day prescription. But eventually, the patient would be told she could start coming in every 90 days.

Two systems were devised to make sure the patient got 90 days of pills from only one visit. Some patients would get three 30-day prescriptions per visit. One prescription could be filled immediately and the other two would have earliest-fill-by dates projected one and two months in advance. Other patients would get just one 30-day prescription from the visit. When their month-long supply of pills ran low, the patients would mail in $240 money orders along with notes requesting a refill.

Clayton and Mann handled these letters. They would check the incoming mail to see if a money order was attached and then match the letter and money order to the patient’s files. They would then fill out the prescription based on the patient’s past dosage. These prescriptions were either signed later by Evans or had already been signed.

These pre-signed prescriptions, according to Clayton, came about in two ways. Evans would keep some pre-signed prescriptions in a safe that the assistants could access. Alternatively, when the assistants were busy, they would leave Evans a prescription for him to sign but not fill in along with the file of the patient who sent in the money order. Evans, Clayton said, "didn't change medications at mail ins." Clayton also confirmed that the money order would be for a prescription, not an office visit. Once a prescription was ready to go, someone from the office would either mail it directly to the patient or take it to Briargrove Pharmacy to get it filled. From there, Briargrove would mail the pills to the patient.

To explain what happened at Briargrove, the Government called Devido, who was the former owner and...